Tuesday, January 21, 2020

Bob Bauer Takes Down Dershowitz Impeachment Defense (Easy Pickings)

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. He wrote this piece for the Lawfare blog (an excellent source of legal analysis). It includes this concluding paragraph:
"In the coming Senate trial, McConnell and Dershowitz are helping each other set a very different precedent of their own, one in which, as a matter of norms (McConnell) or constitutional law (Dershowitz), there is no room for removing a president for the serious abuse, or repetitive abuses, of the power of his office. And, under Dershowitz’s view, a president who is a murderer, a white supremacist, or a virulent misogynist, or who takes off for a year’s vacation in Rome, would also be free to serve out his or her term, or take into a reelection campaign the “vindication” supplied by a Senate acquittal."

George Conway Takes Down the Trump Impeachment Defense

Lincoln Project supporter & lawyer George Conway.

Heather Cox Richardson on the Eve of the Senate Trial: The Non-trial Trial

From @HeatherCoxRichardson:
“For his part, Senate Majority leader Mitch McConnell (R-KY) is doing everything he can to make sure the public sees as little of the proceedings as possible. As conservative pundit David Frum put it: “No witnesses… No evidence… No time… No cameras.” As of Sunday night there had been not even “the most basic negotiation or exchange of information,” according to Senate Minority Whip Dick Durbin (D-IL), and this evening, less than 24 hours before the trial is supposed to start, McConnell revealed a four-page resolution establishing trial rules.
The rules leave open the possibility of simply ending the case immediately, which is unlikely to happen. They limit the arguments from each side to 24 hours over the course of two days each. This would mean a deluge of information too much for most of us to take in, even if significant argument didn’t happen in the middle of the night… as of course it would. The rules give the Senate the option of refusing to hear new evidence or testimony, and on the chance that the Senate does vote for testimony, the rules are arranged to prevent former National Security Advisor John Bolton—or anyone else-- to testify in public.”
HEATHERCOXRICHARDSON.SUBSTACK.COM
After a relatively quiet holiday weekend, the frenzy before tomorrow’s Senate impeachment trial has begun. It is important to remember that Trump's people have produced no evidence that the president did not, in fact, do the things of which he has been charged. His supporters are not even trying t...

NYT & Professor Bowman Debunk Trump's Defense Brief

No lawyer sitting in the Senate should buy this baloney argument on Trump’s behalf. But if you don’t have the facts, argue the law—even if it’s a crap argument.
From the article:
“Mr. Bowman — whose scholarship on impeachment law is cited in a footnote in the Trump legal team brief — called the arguments in that brief “a well-crafted piece of sophistry that cherry-picks sources and ignores inconvenient history and precedent.” For example, he noted, it makes no mention of how the Hastings case involved allegations of abuses of power that were not indictable crimes.”

Former Iowa Senator Tom Harkin: 100 Judges, Not 100 Jurors

Tom Harkin link.
TWITTER.COM
“Tom Harkin: Senators are not jurors. A key point from the former Iowa senator. We have 100 “judges” not “jurors.” Are they (the senator-judges)corrupt? Time will tell & then the voters will judge & then History will have the final say. https://t.co/huZoVru6DW

Bob Bauer Takes Down Mitch McConnell's Argument re Impeachment

A thoughtful lawyer's brief that deconstructs McConnell's arguments against Trump's removal from office brink-by-brick. McConnell is the epitome of hypocrisy and double-talk, but he usually doesn't have to enter into an arena that includes knowledgeable folks who understand legal process and argument. Here he encounters such a response--and he loses, bigly.
N.B. This includes a rejection of the argument of "no crime, no foul" so often claimed by Trump's defenders.
LAWFAREBLOG.COM
In speeches sounding the alarm about “toxic” precedent, Sen. Mitch McConnell has set forth a questionable view of the law of impeachment with serious implications for the future of this constitutional remedy.

Looking at the Constitutional Convention & High Crimes & Misdemeanors"

A deeper look at the debate that occurred at the Constitutional Convention in 1787 and that incorporated impeachment for "High Crimes and Misdemeanors" into the Constitution.
SMITHSONIANMAG.COM
If not for three sparring Virginia delegates, Congress’s power to remove a president would be even more limited than it already is

Black & Bobbitt: "High Crimes & Misdemeanors"

“Treason” and “bribery” are crimes, whether committed by the president or by anyone else. Is the meaning of the phrase “high Crimes and Misdemeanors” limited to ordinary crimes? Can a president lawfully be impeached and removed only for conduct which would also be punishable crime for anybody? Some have contended for this interpretation. It would be easeful to be able to adopt it, because the vague phrase “high Crimes and Misdemeanors” would thus be lent all the precision of the statute book; agonized attempts properly to limit it, while at the same time leaving it properly ample scope, would be avoided. But I cannot think it remotely possible that this interpretation is right.
Black, Charles L., Jr. & Bobbitt, Philip, Impeachment: A Handbook, New Edition (pp. 30-31). Yale University Press. Kindle Edition.

Impeachment: Tribe on the Dershowitz Argument

It's time to get back to impeachment.
Below is an article debunking the claim by Trump's celebrity defense lawyer, Alan Dershowitz, who argues that an actual law must have been broken by the President to justify removal from office. Wrong, as Laurence Tribe, of Harvard University Law School, and perhaps the foremost constitutional scholar during my time as a lawyer, argues. BTW, Tribe's argument accords with that his current Harvard colleague Cass Sunstein (CITIZENS GUIDE TO IMPEACHMENT) and with Black & Bobbitt's IMPEACHMENT: A HANDBOOK, NEW EDITION, which I've quoted at length in earlier posts on the topic of impeachment.
Bogus arguments for a bogus client.

Friday, January 10, 2020

On the Apocalypse in Australia

When one travels with the pilgrim Dante through the Inferno as a part of his (Divine) Comedia, one finds a varied terrain with various tortures intended to suit the seriousness of the sin. Indeed, Judas Iscariot along with Brutus & Cassius (assassins of Caesar) are consumed by Satan, who remains encased in a frozen lake at the very pit of hell. This provided a very different image of hell than what I'd grown up with, which as simply a vast pit of fire. But Nature is finding a preference for raging fires as our fitting punishment for our mistreatment of her. Witness the fires in California and now in Australia. I have difficulty imagining (resistance, no doubt) what these particular hells must be like, but Man Booker prize-winning novelist Richard Flanagan, an Australian, provides a useful description:
"The images of the fires are a cross between “Mad Max” and “On the Beach”: thousands driven onto beaches in a dull orange hazie, crowded tableaux of people and animals almost medieval in their strange muteness — half-Bruegel, half-Bosch, ringed by fire, survivors’ faces hidden behind masks and swimming goggles. Day turns to night as smoke extinguishes all light in the horrifying minutes before the red glow announces the imminence of the inferno. Flames leaping 200 feet into the air. Fire tornadoes. Terrified children at the helm of dinghies, piloting away from the flames, refugees in their own country."
Flanagan also finds some gallows humor at the scene. We humans can find humor almost anywhere, even in the midst of hell. I suspect to the extent that we can't laugh--or at least chuckle--at our plight, we're not human. Really, do you know anyone who doesn't occasionally laugh? Well, yes, HIM; he only smirks & that is to express dominance, not shared human folly.
Flanagan:
"The bookstore in the fire-ravaged village of Cobargo, New South Wales, has a new sign outside: “Post-Apocalyptic Fiction has been moved to Current Affairs.”"
NYTIMES.COM
As record fires rage, the country’s leaders seem intent on sending it to its doom.

Thursday, January 9, 2020

A Thought to Ponder from John Lukacs

John Lukacs

A thought to ponder:


The true patriot . . . is often the kind of thinking person who is bitterly critical of, because he is deeply concerned with, the faults of his own people.

John Lukacs, Historical Consciousness: The Remembered Past (1969/1985)

Thomas Friedman on the Folly of Trump-Iran

Thomas Friedman looking beyond the immediate headlines. My summary: we need to end our addiction (yes, ADDICTION) to fossil fuels. Our addiction is literally killing us. Dying to get more of what's killing us is the life of a drug addict. Leave the oil in the ground, and let the Sunnis and Shias to fight if they choose. Let's leave oil in the ground and leave the Middle East as a permanent war project. Friedman:
"When I step back and get some distance on this latest clash between President Trump and Iran’s supreme leader, Ayatollah Ali Khamenei, it becomes obvious to me that what we have here are two bald men fighting over a comb.
We have two old men, with old ideas, fighting over a country that neither should want — Iraq — and over a 20th-century resource — oil — that is decreasingly relevant to a 21st-century nation’s economy and for a strategic goal — to dominate the Middle East — that no sane leader should want to achieve, because all that you win is a bill.
In short, it’s just so much fury that will change so little.
Which is why, when I hear Fox News’ flag-waving commentators claiming that those who don’t support Trump in his careening around the Middle East are being unpatriotic, I want to burst out laughing, because it is so pathetic."